Conversations you may record

This advice may seem slightly off the wall, but I cannot tell you how many times I have been asked about the legality of recording telephone or face-to-face conversations and, more precisely, who must have knowledge of and/or consent to such recordings.

A legitimate desire to record a conversation may arise in order to monitor quality control of employees conversing with customers or other employees.

Conversations also may be recorded to preserve – for potential litigation – evidence or admissions of conduct by employees or others. Recording may be desired to gather evidence to support a claim or lawsuit against another party.

There are two fundamental concerns regarding federal and state law in this area.

First, if the recording is done to preserve or gather evidence for a potential lawsuit, the evidence will not be admissible in court if the conversation was illegally recorded.

Second, there may be civil or even criminal penalties for illegally recording a conversation.

The laws governing the recording of conversations are usually called “wiretapping” laws because they are founded in the unlawful receipt of conversations.

Under federal and most state wiretapping laws, a phone conversation may be recorded with the consent of just one party, provided that the recording person will not use the tape for illegal activities. In other words, in these states you may record a conversation to which you are a party without telling the other person.

A peculiarity in a few states is that the recording party needs the consent of the telephone owner to tape the conversation.

A face-to-face communication also may be legally recorded in most states as long as the taping is done by a party to the conversation. Federal and state laws restricting the interception of telephone conversations also restrict the interception of face-to-face conversations.

It is illegal in all jurisdictions to record a conversation to which you are not a party and do not have consent.

Twelve states require the consent of all parties in order to legally record a conversation. They are: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.

If recorded conversations do not conform to the normal rules of evidence and are not authenticated, they will not be admissible even if they are legally recorded.

Generally, the federal rules of evidence require authentication of identity as a condition to admit evidence. The statute offers the following illustrations:

Identification of a voice, whether heard first-hand or through a recording, based upon hearing the voice at any time under circumstances connecting the voice with the alleged speaker.

Authentication of telephone conversations by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business. Additionally, in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.There is a free, internet website serving journalists that surveys the laws in each state that are applicable to recording conversations. It is: www.rcfp.org/taping.

Rather than relying on such secondary sources or magazine articles like this one, however, you should ask your lawyer.